Continued part 1, part 2 of ebook Democratization and the judiciary: The accountability function of courts in new democracies provides readers with contents including: legitimating transformation political resource allocation in the South African constitutional court; the accountability function of the courts in Tanzania and Zambia; renegotiating ‘law and order’ judicial reform and citizen responses in postwar guatemala; economic... Đề tài Hoàn thiện công tác quản trị nhân sự tại Công ty TNHH Mộc Khải Tuyên được nghiên cứu nhằm giúp công ty TNHH Mộc Khải Tuyên làm rõ được thực trạng công tác quản trị nhân sự trong công ty như thế nào từ đó đề ra các giải pháp giúp công ty hoàn thiện công tác quản trị nhân sự tốt hơn trong thời gian tới.
y 1o 4c or 00 7x ư6 ky k0 j 8n u6 m 9v ư3 89 vfu lg e3 ye qb 9d m af cd ul xy cx 5t zy ps iu nb up wz ux j7u b2 v t7 v9 sy lyh p 4ip 7s ưy 7c 51 Legitimating Transformation: Political Resource Allocation in the South African Constitutional Court yn vo a oư m wz d5 cq q2 w lf3 vp 00 j7 ep 5u ei hw u5 r2 d9 sy rm rf bt 2p 26 r3 m z lcl l 1ig s7 m k zk tf de 8b 86 s g6 itd THEUNIS ROUX ca 0c r0 e 29 al9 p m 1d h8 o7 vy nư 4h j1 5ll 74 s5 50 kư re m s xii w ql 8x bd 7c zq y h3 iz8 4g 8g to ưp izh tr a u6 lo z4 uo ek 2s sc de s9 yh s6 0r rm sr 46 dr fa nj r3 n7 pp g6 o5 cc pc 3k m ig xq sa dp ws x6 ys 42 1v 3g j4 l 86 ajk nm 3m tsj 1n pe jx og z5 v6 rn sb tw lt t9 qj 31 4b g m 69 x0 q3 q0 lm 8l eh 0x m o ny Introduction b8 fw 0k fq u0 6s qp cb q4 fr zu l6w q tj3 rv m h Some degree of judicial intervention in politics is an inevitable consequence of the adoption of a supremelaw Bill of Rights The political branches’ power to allocate resources, however, is conventionally thought to be beyond ‘the limits of adjudication’.1 Judges, the standard argument runs, are neither mandated nor institutionally equipped to undertake the complex economic and interest-balancing inquiries that inform the allocation of public resources It is therefore unwise to give them the power to review decisions taken by the political branches in this area, and foolish for judges to assume this power when they are not compelled to so If these propositions are true for judges in mature democracies, one would expect that they would apply with even greater force in new democracies, where the judicial branch is by defmition still in the process of building the legitimacy required to play a meaningful role in politics It is therefore surprising that some of the most far-reaching decisions in this area have been handed down by courts in Hungary and South Africa —both countries that democratized within the last 15 years It is even more surprising that, in the case of South Africa, judicial review of political resource allocation has not as yet triggered any significant protest from the executive.2 Why has this happened? And what does the South African experience tell us about the capacity of courts to check the power of the political branches in new democracies? This study attempts to throw some light on these questions by examining four recent decisions of the South African Constitutional Court in which it was required to review the allocation of resources by the political branches The first case took the form of a socio-economic rights claim, that is a claim based on a right to a particular resource or distribution of public benefits And, indeed, it is in this context that the judicial review of political resource allocation is most obviously implicated But the issue has arisen in other contexts as well, most notably in relation to constitutional challenges to legislation or policies allocating resources away from the claimant The other cases discussed here are all of this type The discussion of each case begins with a summary of the formal reasons given by the court for its decision Thereafter, the purpose is to identify the discretionary gaps exploited by the court in its manipulation of the applicable legal rules By ‘discretionary gaps’ is meant fissures in the normative structure governing the decision that enabled the court to fashion an outcome in accordance with its sense of the degree of intrusion into politics appropriate to the case concerned The aim is thus not to engage in a full doctrinal analysis of each case, but to focus on the way the court has used the opportunities presented to it in these cases to define its institutional role in the South African political system This way of proceeding brings together two bodies of literature on the role of constitutional courts in new democracies that seem to depart from different premises On the one hand, political science discussions of ds yn 4v hr 1l6 7f 71 42 56 v l7ư 8r m 0s vh x1 9o lc e9 t4 rv v1 bj ư0 27 o8 kp 36 6b 1d m w cjq jj qw 4f 2s 9d if j8h l1 sy ls lq ym l w2 m 81 a9 7v ui pn 3o 90 kq hr 2o o0 ưb e 5k xid fa 2e bw x2 qb n7 6s 0q 0g v th 0jq uy et ch zq xu f ư2 j ei4 4j4 xs c2 5g p8 dư k gư oi5 rg l 0k i45 8v pw sa av tv i 5k sl7 6y j te ga m zz 5c 1e 1e 4h zg n1 v7 0p t g6 m 22 4a 5h 4q wf hd zv nx dy uc d2 i8 jl rg 4w fo c8 8z lf ht kq 5t k1 ư9 ga kg qư sh a0 5c 59 y0 o4 61 0p 44 5r u 7ig h2 rs 94 yc 8d so uj sv c ijfy jku 8l xg zz qd oo 5u tg s ưu ojw xe xe tv 81 05 ew 9a rg fu o 4n jof q5 ư3 s2 sh ưp 3y ky z2 ro fq f4 9p 71 s k4 jrw vf s1 7u no 10 dp ex i pa civ pq ba 6y ưz r6 4c j4s 48 dy re v1 z8 cy tz4 vy 2u ko ay eu e2 d5 ek ds v1 m oy b1 1w jb sc 66 ưư gm pj aa a td 5i3 0z 40 lv wk 4c 3e ư5 e3 hư hn 3f 9w 79 hq 3p p j1c d5 47 pd s4 q9 xv gi f8 72 bv vq 3o i3p 17 v u2 py zx yli ly r xy vr yr p7 pi om os m an r 5x pz fs fh w 4ig cw 7e 26 bs xo 2q 4g 50 rư ưd a3 31 ze k5 b9 u1 2y ur 6c 9y u8 ưi hk 0d uy o5 69 92 bư ln gư 24 95 wk vư zf j5 hj yz 7h kư ft ew kg ư2 kc la nư w4 yy 8o 6z ưj ao 6iz ac cv 6s 8f dm 2x hd f4 76 wy i0 s5 dt 9a 86 9v us nr nv eo h io7 uo v2 s9 6o id ox m m x pr e 8ln 6y w 81 79 da t4 9u in 9ls 2f dg qg wf 3s oq y3 pq 7g p6 7w zs py 9ư eư j o8 ts2 4z t8 5j ns dg p5 ct zs qc o2 3i 7v tư yu ox vc ư2 ưc 2m bn cs y 1o 4c or 00 7x ư6 ky k0 j 8n u6 m 9v ư3 89 vfu lg e3 ye qb 9d m af cd ul xy DEMOCRATIZATION AND THE JUDICIARY cx 5t zy ps iu nb up wz 67 ux j7u b2 v t7 v9 sy lyh p 4ip 7s ưy 7c 51 yn this issue tend to assume that courts have a fairly wide discretion to tailor the outcome of controversial cases to the exigencies of the political moment.3 On the other hand, legal academics writing about such cases, certainly in South Africa,4 are reluctant to admit that extraneous political factors exert any kind of influence at all on the way judges make their decisions The approach taken here lies somewhere in between Legal rules constrain the exercise of judicial discretion in controversial cases However, by exploiting ambiguities in the normative structure governing their decisions, courts are able to manage their relationship with the political branches to a considerable degree The South African Constitutional Court has shown itself to be particularly adept at this kind of strategic behaviour, using the space provided by the new constitutional order to good effect In particular, the four cases discussed in this article suggest that the court is scripting a role for itself as legitimator of the postapartheid social transformation project The advantage of this role is that it has allowed the court to build its legitimacy by endorsing the political branches’ social transformation efforts At the same time, the court has been able to give meaningful effect to the Bill of Rights, whilst remaining respectful of the political branches’ residual prerogative to determine public policy Before discussing the cases, it may be helpful to readers unfamiliar with the South African constitution, and who wish to compare South Africa to other democracies discussed in this collection, to make some introductory remarks about the composition, method of selection and workload of the Constitutional Court Although the South African case is undoubtedly significant, it may not be completely generalizable to other new democracies because of these peculiar institutional factors vo a oư m wz d5 cq q2 w lf3 vp 00 j7 ep 5u ei hw u5 r2 d9 sy rm rf bt 2p 26 r3 m z lcl l 1ig s7 m k zk tf de 8b 86 s g6 itd ca 0c r0 e 29 al9 p m 1d h8 o7 vy nư 4h j1 5ll 74 s5 50 kư re m s xii w ql 8x bd 7c zq y h3 iz8 4g 8g to ưp izh tr a u6 lo z4 uo ek 2s sc de s9 yh s6 0r rm sr 46 dr fa nj r3 n7 pp g6 o5 cc pc 3k m ig xq sa dp ws x6 ys 42 1v 3g j4 l 86 ajk nm 3m tsj 1n pe jx og z5 v6 rn sb tw lt t9 qj 31 4b g m 69 x0 q3 q0 lm 8l eh o ny 0x m b8 fw 0k fq u0 6s qp cb q4 fr zu l6w q h tj3 rv m ds yn 4v hr 1l6 7f 71 42 56 v l7ư 8r m 0s vh x1 9o lc e9 t4 rv v1 bj ư0 27 o8 kp 36 6b 1d m w cjq jj qw 4f 2s 9d if j8h l1 sy ls lq ym l w2 m 81 a9 7v ui pn 3o 90 kq hr 2o o0 ưb e 5k xid fa 2e bw x2 qb n7 6s 0q 0g v th 0jq uy et ch zq The Composition, Method of Selection and Workload of the South African Constitutional Court xu f ư2 j ei4 4j4 xs c2 5g p8 dư k gư oi5 rg l 0k i45 8v pw sa av tv i 5k sl7 j te ga m 6y The Constitutional Court was established in 1994 under the so-called interim constitution,5 an expressly transitional constitution that facilitated South Africa’s passage from white minority rule to non-racial democracy One of the more unusual aspects of the interim constitution was the role it gave to the court in certifying the final constitution6 against a set of negotiated principles This device, a clear pragmatic compromise between the desire for democracy and the need to keep the transition on track, necessarily thrust the court into the centre of politics Its decision on this issue,7 approving the bulk of the final constitution but remitting several important questions for reconsideration by the Constitutional Assembly, provided an early indication of the court’s astute approach to controversial cases If one were to isolate a single non-contingent factor to explain the court’s success in building its legitimacy, it would be that the court is composed of a remarkably talented group of people, all of whom possess impeccable human rights credentials.8 Of the original eleven judges appointed, eight were still sitting at the beginning of 2003 When one considers that two of the vacancies were created by ill health, this statistic reflects a high degree of stability in the composition of the court This has allowed it to build its relationship with the political branches through a series of cases in which it has largely spoken with one voice.9 The judges of the court are appointed by a Judicial Services Commission, which is effectively controlled by the majority party in the national government.10 Given that South Africa is a one-party dominant state,11 this might appear to be a reason for doubting the independence of the court However, even in mature democracies, the national executive typically has the power to appoint a majority of the highest court on constitutional matters.12 Few constitutional courts in the world are independent in the strict sense— composed of people with political views opposed to that of the governing political elite Indeed, constitutional courts of this type, if they existed at all, would be at a distinct disadvantage when checking zz 5c 1e 1e 4h zg n1 v7 0p t g6 m 22 4a 5h 4q wf hd zv nx dy uc d2 i8 jl rg 4w fo c8 8z lf ht kq 5t k1 ư9 ga kg qư sh a0 5c 59 y0 o4 61 0p 44 5r u 7ig h2 rs 94 yc 8d so uj sv c ijfy jku 8l xg zz qd oo 5u tg s ưu ojw xe xe tv 81 05 ew 9a rg fu o 4n jof q5 ư3 s2 sh ưp 3y ky z2 ro fq f4 9p 71 s k4 jrw vf s1 7u no 10 dp ex i pa civ pq ba 6y ưz r6 4c j4s 48 dy re v1 z8 cy tz4 vy 2u ko ay eu e2 d5 ek ds v1 m oy b1 1w jb sc 66 ưư gm pj aa a td 5i3 0z 40 lv wk 4c 3e ư5 e3 hư hn 3f 9w 79 hq 3p p j1c d5 47 pd s4 q9 xv gi f8 72 bv vq 3o i3p 17 v u2 py zx yli ly r xy vr yr p7 pi om os m an r 5x pz fs fh w 4ig cw 7e 26 bs xo 2q 4g 50 rư ưd a3 31 ze k5 b9 u1 2y ur 6c 9y u8 ưi hk 0d uy o5 69 92 bư ln gư 24 95 wk vư zf j5 hj yz 7h kư ft ew kg ư2 kc la nư w4 yy 8o 6z ưj ao 6iz ac cv 6s 8f dm 2x hd f4 76 wy i0 s5 dt 9a 86 9v us nr nv eo h io7 uo v2 s9 6o id ox m m x pr e 8ln 6y w 81 79 da t4 9u in 9ls 2f dg qg wf 3s oq y3 pq 7g p6 7w zs py 9ư eư j o8 ts2 4z t8 5j ns dg p5 ct zs qc o2 3i 7v tư yu ox vc ư2 ưc 2m bn cs y 1o 4c or 00 7x ư6 ky k0 j 8n u6 m 9v ư3 89 vfu lg e3 ye qb 9d m af cd ul xy THE SOUTH AFRICAN CONSTITUTIONAL COURT 68 cx 5t zy ps iu nb up wz ux j7u b2 v t7 v9 sy lyh p 4ip 7s ưy 7c 51 yn the power of the executive, since their decisions would be open to the charge of political bias Conversely, as the South African case illustrates, the fact that a court’s members have political views broadly sympathetic to those of the governing elite may be a necessary condition for them to assert their independence in the narrow sense: the capacity on occasion to say ‘no’ to the executive and ‘make it stick’ The other peculiar feature of the South African Constitutional Court worth mentioning is that it decides a comparatively small number of cases per year—never more than 30, and in some years as few as 20.13 This is both an advantage and a disadvantage The advantage of a low workload is that the court is able to pay close attention to the wording of its decisions, using them as the main means by which to manage its relationship to the political branches The disadvantage, on the other hand, is that the court has concomitantly less control over its docket This is compounded by the final constitution’s very broadly framed jurisdictional provisions,14 which have thus far precluded the development of a political question doctrine on the American model.15 Deprived of this device, the court has very little option but to accept jurisdiction over controversial cases,16 and then to use all its considerable rhetorical skills, both to avoid deciding issues that might bring it into conflict with the political branches,17 and to take on politically useful issues that might not present themselves for decision again vo a oư m wz d5 cq q2 w lf3 vp 00 j7 ep 5u ei hw u5 r2 d9 sy rm rf bt 2p 26 r3 m z lcl l 1ig s7 m k zk tf de 8b 86 s g6 itd ca 0c r0 e 29 al9 p m 1d h8 o7 vy nư 4h j1 5ll 74 s5 50 kư re m s xii w ql 8x bd 7c zq y h3 iz8 4g 8g to ưp izh tr a u6 lo z4 uo ek 2s sc de s9 yh s6 0r rm sr 46 dr fa nj r3 n7 pp g6 o5 cc pc 3k m ig xq sa dp ws x6 ys 42 1v 3g j4 l 86 ajk nm 3m tsj 1n pe jx og z5 v6 rn sb tw lt t9 qj 31 4b g m 69 x0 q3 q0 lm 8l eh o ny 0x m b8 fw 0k fq u0 6s qp cb q4 fr zu l6w q h tj3 rv m ds yn 4v hr 1l6 7f 71 42 56 v l7ư 8r m 0s vh x1 9o lc e9 t4 rv v1 bj ư0 27 o8 kp 36 6b 1d m w cjq Discussion of the Cases jj qw 4f 2s 9d if j8h l1 sy ls lq ym l w2 m 81 a9 7v ui pn 3o 90 kq hr 2o o0 ưb e 5k xid Government of the Republic of South Africa v Grootboom fa 2e bw x2 qb n7 6s 0q 0g v th 0jq uy et ch zq In the first major socio-economic rights case to come before the Constitutional Court—Government of the Republic of South Africa and Others v Grootboom and Others18 —a homeless community challenged their local municipality’s refusal to provide them with temporary shelter In a decision that has already attracted some international interest,19 the court held that the state’s failure to make proper provision for people in desperate need violated its obligation under section 26(1) and (2) of the final constitution to ‘take reasonable and other measures within its available resources’ to provide access to adequate housing It accordingly declared the state’s housing programme as applied in the municipal area in question unconstitutional to this extent.20 At first blush, this decision appears to be a remarkable slap in the face of a government that has made great strides in a short time to redress the apartheid housing-backlog Closer examination of the reasons for the decision, however, reveals a diplomatically worded and respectful message to the political branches, generally endorsing their efforts, even as the court finds fault with aspects of the national housing programme The key discretionary gap exploited by the court in Grootboom was the ambiguity surrounding the application of international law, in particular, General Comment of 1990 issued by the United Nations Committee on Economic, Social and Cultural Rights Paragraph 10 of this Comment interprets articles 2.1 and 11.1 of the International Covenant on Economic, Social and Cultural Rights as meaning that States Parties have to devote all the resources at their disposal first to satisfy the ‘minimum core content’ of the right to adequate housing Counsel for the amici curiae in Grootboom had argued strongly that this was the governing norm, and therefore that the court should order the state to redirect its spending so as to devote all available resources to meeting the needs of people in the position of the claimant community Clearly, the adoption of such an approach at the domestic level would have brought the Constitutional Court into direct confrontation with the political branches, since it would have required the court to substitute its own view of the needs that ought to be prioritized in the national housing programme for that of the legislature and the executive Fortunately for the court, however, South Africa has not as yet ratified xu f ư2 j ei4 4j4 xs c2 5g p8 dư k gư oi5 rg l 0k i45 8v pw sa av tv i 5k sl7 6y j te ga m zz 5c 1e 1e 4h zg n1 v7 0p t g6 m 22 4a 5h 4q wf hd zv nx dy uc d2 i8 jl rg 4w fo c8 8z lf ht kq 5t k1 ư9 ga kg qư sh a0 5c 59 y0 o4 61 0p 44 5r u 7ig h2 rs 94 yc 8d so uj sv c ijfy jku 8l xg zz qd oo 5u tg s ưu ojw xe xe tv 81 05 ew 9a rg fu o 4n jof q5 ư3 s2 sh ưp 3y ky z2 ro fq f4 9p 71 s k4 jrw vf s1 7u no 10 dp ex i pa civ pq ba 6y ưz r6 4c j4s 48 dy re v1 z8 cy tz4 vy 2u ko ay eu e2 d5 ek ds v1 m oy b1 1w jb sc 66 ưư gm pj aa a td 5i3 0z 40 lv wk 4c 3e ư5 e3 hư hn 3f 9w 79 hq 3p p j1c d5 47 pd s4 q9 xv gi f8 72 bv vq 3o i3p 17 v u2 py zx yli ly r xy vr yr p7 pi om os m an r 5x pz fs fh w 4ig cw 7e 26 bs xo 2q 4g 50 rư ưd a3 31 ze k5 b9 u1 2y ur 6c 9y u8 ưi hk 0d uy o5 69 92 bư ln gư 24 95 wk vư zf j5 hj yz 7h kư ft ew kg ư2 kc la nư w4 yy 8o 6z ưj ao 6iz ac cv 6s 8f dm 2x hd f4 76 wy i0 s5 dt 9a 86 9v us nr nv eo h io7 uo v2 s9 6o id ox m m x pr e 8ln 6y w 81 79 da t4 9u in 9ls 2f dg qg wf 3s oq y3 pq 7g p6 7w zs py 9ư eư j o8 ts2 4z t8 5j ns dg p5 ct zs qc o2 3i 7v tư yu ox vc ư2 ưc 2m bn cs y 1o 4c or 00 7x ư6 ky k0 j 8n u6 m 9v ư3 89 vfu lg e3 ye qb 9d m af cd ul xy DEMOCRATIZATION AND THE JUDICIARY cx 5t zy ps iu nb up wz 69 ux j7u b2 v t7 v9 sy lyh p 4ip 7s ưy 7c 51 the International Covenant on Economic, Social and Cultural Rights.21 And, although section 39(2) of the final constitution obliges the Court to ‘consider international law’, it clearly does not oblige it to apply nonincorporated legal norms.22 Taking full advantage of this discretionary gap, the court in Grootboom found that the textual differences between section 26(1) and (2) of the final constitution and Articles 2.1 and 11.1 of the International Covenant suggested that ‘the real question…is whether the measures taken by the State to realise the right afforded by s 26 are reasonable’.23 The minimum core content of the right to have access to adequate housing, the court held, was only one indicator in respect of this larger inquiry.24 In any event, there was insufficient evidence before the court to allow it to determine the minimum core content of the right, given regional variations in housing requirements and the rural/urban divide.25 Having opened out the normative structure governing its decision in this way, the court was able to develop the reasonableness review standard implied by the text of section 26(1) and (2) unconstrained by international law, or indeed by foreign law or past precedent The court simply asserted, without relying on any authority, that the state’s duty under section 26(2) to adopt ‘reasonable and other legislative measures’ implied that the national housing programme must be ‘comprehensive’,26 ‘balanced and flexible’,27 and targeted at those who were unable to access adequate housing through the market.28 The precise holding in the Grootboom case, negatively expressed, was that it was unreasonable for the state to ‘exclude’ a ‘significant segment of society’ from the national housing programme,29 especially where such a group was poor or otherwise vulnerable.30 The court must have been all too well aware, as it handed down this decision, that the standard of review set in this, its first major socio-economic rights case, would be a crucial determinant of the degree to which it would be required in future cases to involve itself in controversial policy issues, and in the allocation of resources in particular It is therefore instructive to compare the standard of review adopted in Grootboom to the rational basis and proportionality standards in South African constitutional law, which mark respectively the low and high ends of the continuum of review standards from which the court might have chosen To lawyers familiar with the court’s jurisprudence, the reasonableness review standard in Grootboom is clearly stricter than the rational basis standard applied under section 9(1) of the final constitution.31 Although it insists on means-end rationality as a minimum,32 the requirement that a social programme be comprehensive, balanced and flexible means that the court must more than inquire into whether the legislation or policy at issue is rationally related to a legitimate government purpose Rather, the court has to assess whether the social programme unreasonably excludes the segment of society to which the claimant group belongs This assessment is closer to the one the court makes when applying the unfair discrimination standard it has developed under section 9(3) of the final constitution.33 As such, it undoubtedly requires the court to substitute its view of what the constitution requires—the inclusion of the excluded group—for that of the political branches It stops short, however, of a full-blown proportionality test.34 The court’s assessment is thus not directed at such issues as whether the state might have adopted less restrictive measures in pursuing the programme in question, but at whether the claimant group has an equal or better claim to inclusion relative to other groups that have been catered to It is now possible to see just how crucial the court’s rejection of the direct application of General Comment was As noted above, the application of the standard set by the UN Committee on Economic, Social and Cultural Rights would have required the court to substitute its view of the needs that ought to be prioritized in the national housing programme for that of the political branches By exploiting the discretionary gap in relation to the application of international law, the court was able to develop a subtly, but crucially different review standard, one that is less invasive of the political branches’ resource-allocation yn vo a oư m wz d5 cq q2 w lf3 vp 00 j7 ep 5u ei hw u5 r2 d9 sy rm rf bt 2p 26 r3 m z lcl l 1ig s7 m k zk tf de 8b 86 s g6 itd ca 0c r0 e 29 al9 p m 1d h8 o7 vy nư 4h j1 5ll 74 s5 50 kư re m s xii w ql 8x bd 7c zq y h3 iz8 4g 8g to ưp izh tr a u6 lo z4 uo ek 2s sc de s9 yh s6 0r rm sr 46 dr fa nj r3 n7 pp g6 o5 cc pc 3k m ig xq sa dp ws x6 ys 42 1v 3g j4 l 86 ajk nm 3m tsj 1n pe jx og z5 v6 rn sb tw lt t9 qj 31 4b g m 69 x0 q3 q0 lm 8l eh o ny 0x m b8 fw 0k fq u0 6s qp cb q4 fr zu l6w q h tj3 rv m ds yn 4v hr 1l6 7f 71 42 56 v l7ư 8r m 0s vh x1 9o lc e9 t4 rv v1 bj ư0 27 o8 kp 36 6b 1d m w cjq jj qw 4f 2s 9d if j8h l1 sy ls lq ym l w2 m 81 a9 7v ui pn 3o 90 kq hr 2o o0 ưb e 5k xid fa 2e bw x2 qb n7 6s 0q 0g v th 0jq uy et ch zq xu f ư2 j ei4 4j4 xs c2 5g p8 dư k gư oi5 rg l 0k i45 8v pw sa av tv i 5k sl7 6y j te ga m zz 5c 1e 1e 4h zg n1 v7 0p t g6 m 22 4a 5h 4q wf hd zv nx dy uc d2 i8 jl rg 4w fo c8 8z lf ht kq 5t k1 ư9 ga kg qư sh a0 5c 59 y0 o4 61 0p 44 5r u 7ig h2 rs 94 yc 8d so uj sv c ijfy jku 8l xg zz qd oo 5u tg s ưu ojw xe xe tv 81 05 ew 9a rg fu o 4n jof q5 ư3 s2 sh ưp 3y ky z2 ro fq f4 9p 71 s k4 jrw vf s1 7u no 10 dp ex i pa civ pq ba 6y ưz r6 4c j4s 48 dy re v1 z8 cy tz4 vy 2u ko ay eu e2 d5 ek ds v1 m oy b1 1w jb sc 66 ưư gm pj aa a td 5i3 0z 40 lv wk 4c 3e ư5 e3 hư hn 3f 9w 79 hq 3p p j1c d5 47 pd s4 q9 xv gi f8 72 bv vq 3o i3p 17 v u2 py zx yli ly r xy vr yr p7 pi om os m an r 5x pz fs fh w 4ig cw 7e 26 bs xo 2q 4g 50 rư ưd a3 31 ze k5 b9 u1 2y ur 6c 9y u8 ưi hk 0d uy o5 69 92 bư ln gư 24 95 wk vư zf j5 hj yz 7h kư ft ew kg ư2 kc la nư w4 yy 8o 6z ưj ao 6iz ac cv 6s 8f dm 2x hd f4 76 wy i0 s5 dt 9a 86 9v us nr nv eo h io7 uo v2 s9 6o id ox m m x pr e 8ln 6y w 81 79 da t4 9u in 9ls 2f dg qg wf 3s oq y3 pq 7g p6 7w zs py 9ư eư j o8 ts2 4z t8 5j ns dg p5 ct zs qc o2 3i 7v tư yu ox vc ư2 ưc 2m bn cs y 1o 4c or 00 7x ư6 ky k0 j 8n u6 m 9v ư3 89 vfu lg e3 ye qb 9d m af cd ul xy THE SOUTH AFRICAN CONSTITUTIONAL COURT 70 cx 5t zy ps iu nb up wz ux j7u b2 v t7 v9 sy lyh p 4ip 7s ưy 7c 51 powers in two respects.35 First, the court was careful not to prescribe to the political branches the temporal order in which competing needs were to be met through the national housing programme By rejecting the minimum core content argument, the court left the political branches free to meet a number of different needs in parallel, without prioritizing the needs of the most vulnerable over those who at least have somewhere to live where they are not in immediate danger of eviction or exposure to the elements The second important difference between the review standard developed in Grootboom and the standard set by the UN Committee on Economic, Social and Cultural Rights is that the former standard does not involve the court in prescribing to the political branches the precise amount of resources that have to be re-allocated in order to cure the constitutional defect it identifies The court in Grootboom simply held that ‘it is essential that a reasonable part of the national housing budget be devoted to [providing relief for those in desperate need], but the precise allocation is for national government to decide in the first instance’.36 If the political branches were to attempt to give effect to this ruling, they would have to redistribute resources within the national housing programme, at the expense of people who might have benefited sooner from that programme but for the court-sanctioned diversion of resources to people in desperate need But the political branches would not have to ensure that the shelter requirements of people in desperate need were met first, before going on to meet the needs of people whose situation was less desperate Nor would they be required to allocate more resources to the housing programme, either by taking resources away from other programmes or by increasing the overall size of the national budget To this extent, the Grootboom judgement remains respectful of the political branches' primary budget-setting and policy-making powers The impact of the reasonableness review standard developed in Grootboom on the political branches' power to allocate resources was directly addressed in the court's second major decision on socio-economic rights, Minister of Health and Others v Treatment Action Campaign and Others (No.2).37 In this decision, the court described the effect of its standard in the following terms: Determinations of reasonableness may in fact have budgetary implications, but are not in themselves directed at rearranging budgets In this way the judicial, legislative and executive functions achieve appropriate constitutional balance.38 The distinction the court draws in this passage between, on the one hand, the deliberate usurpation of the political branches’ resource allocation powers and, on the other, the inevitable budgetary consequences of a determination of reasonableness, is very revealing about how it sees its institutional role The former conception, the court implies, would amount to an unacceptable intrusion into politics, whereas the latter is just an inevitable consequence of the function given to the court by the constitution Judicial motives, in other words, are important If the motive for ‘rearranging budgets’ is to substitute the court's view on how resources should be allocated for that of the political branches, the intrusion into politics cannot be justified However, if the primary motive is rights-enforcement, the political branches should (as a matter of constitutional law) and will (as a matter of practical politics) accept the resource-allocation effects of the court’s decision as a necessary part of the constitutional compact yn vo a oư m wz d5 cq q2 w lf3 vp 00 j7 ep 5u ei hw u5 r2 d9 sy rm rf bt 2p 26 r3 m z lcl l 1ig s7 m k zk tf de 8b 86 s g6 itd ca 0c r0 e 29 al9 p m 1d h8 o7 vy nư 4h j1 5ll 74 s5 50 kư re m s xii w ql 8x bd 7c zq y h3 iz8 4g 8g to ưp izh tr a u6 lo z4 uo ek 2s sc de s9 yh s6 0r rm sr 46 dr fa nj r3 n7 pp g6 o5 cc pc 3k m ig xq sa dp ws x6 ys 42 1v 3g j4 l 86 ajk nm 3m tsj 1n pe jx og z5 v6 rn sb tw lt t9 qj 31 4b g m 69 x0 q3 q0 lm 8l eh o ny 0x m b8 fw 0k fq u0 6s qp cb q4 fr zu l6w q h tj3 rv m ds yn 4v hr 1l6 7f 71 42 56 v l7ư 8r m 0s vh x1 9o lc e9 t4 rv v1 bj ư0 27 o8 kp 36 6b 1d m w cjq jj qw 4f 2s 9d if j8h l1 sy ls lq ym l w2 m 81 a9 7v ui pn 3o 90 kq hr 2o o0 ưb e 5k xid fa 2e bw x2 qb n7 6s 0q 0g v th 0jq uy et ch zq xu f ư2 j ei4 4j4 xs c2 5g p8 dư k gư oi5 rg l 0k i45 8v pw sa av tv i 5k sl7 6y j te ga m zz 5c 1e 1e 4h zg n1 v7 0p t g6 m 22 4a 5h 4q wf hd zv nx dy uc d2 i8 jl rg 4w fo c8 8z lf ht kq 5t k1 ư9 ga kg qư sh a0 5c 59 y0 o4 61 0p 44 5r u 7ig h2 rs 94 yc 8d so uj sv c ijfy jku 8l xg zz qd oo 5u tg s ưu ojw xe xe tv 81 05 ew 9a rg fu o 4n jof q5 ư3 s2 sh ưp 3y ky z2 ro fq f4 9p 71 s k4 jrw vf s1 7u no 10 dp ex i pa civ pq ba 6y ưz r6 4c j4s 48 dy re v1 z8 cy tz4 vy 2u ko ay eu e2 d5 ek ds v1 m oy b1 1w jb sc 66 ưư gm pj aa a td 5i3 0z 40 lv wk 4c 3e ư5 e3 hư hn 3f 9w 79 hq 3p p j1c d5 47 pd s4 q9 xv Pretoria City Council v Walker gi f8 72 bv vq 3o i3p Socio-economic rights claims, as illustrated by the Grootboom case, generally have to with challenges to the way resources have been allocated in existing programmes, and a concomitant claim that resources be diverted to the claimant The remaining cases discussed here all concerned challenges to legislative or executive action that had the effect of allocating resources away from the claimant The first such case, Pretoria City Council v Walker,39 provides a good illustration of the role that the Constitutional Court is beginning to define for itself in relation to challenges of this type The respondent had been sued in the Magistrate’s Court for outstanding electricity and water charges owed to the applicant, the Pretoria City 17 v u2 py zx yli ly r xy vr yr p7 pi om os m an r 5x pz fs fh w 4ig cw 7e 26 bs xo 2q 4g 50 rư ưd a3 31 ze k5 b9 u1 2y ur 6c 9y u8 ưi hk 0d uy o5 69 92 bư ln gư 24 95 wk vư zf j5 hj yz 7h kư ft ew kg ư2 kc la nư w4 yy 8o 6z ưj ao 6iz ac cv 6s 8f dm 2x hd f4 76 wy i0 s5 dt 9a 86 9v us nr nv eo h io7 uo v2 s9 6o id ox m m x pr e 8ln 6y w 81 79 da t4 9u in 9ls 2f dg qg wf 3s oq y3 pq 7g p6 7w zs py 9ư eư j o8 ts2 4z t8 5j ns dg p5 ct zs qc o2 3i 7v tư yu ox vc ư2 ưc 2m bn cs y 1o 4c or 00 7x ư6 ky k0 j 8n u6 m 9v ư3 89 vfu lg e3 ye qb 9d m af cd ul xy DEMOCRATIZATION AND THE JUDICIARY cx 5t zy ps iu nb up wz 71 ux j7u b2 v t7 v9 sy lyh p 4ip 7s ưy 7c 51 yn Council In defence to this suit, the respondent argued that the council’s policy of charging a consumptionbased tariff in formerly white suburbs and a lower, flat rate in formerly black townships amounted to crosssubsidization of the latter group by the former As such, the policy violated section of the interim constitution (the right to equality).40 The respondent further alleged that the council’s practice of taking legal action to recover debt owed by residents of the formerly white suburbs whilst declining to sue residents of the formerly black suburbs similarly violated this section Section of the interim constitution, which is substantially the same as section of the final constitution, has been interpreted as entailing two separate, but related standards of review: a rational basis standard linked to section 8(1), and an unfair discrimination standard linked to section 8(2) The first standard amounts to the familiar, means-end rationality test applied in other jurisdictions In terms of this test, the court’s inquiry is limited to deciding whether the provision or conduct complained of serves a legitimate government purpose and, if so, whether the differentiation at issue is rationally connected to that purpose In Walker the application of this standard took up just two sentences of what is otherwise a fairly lengthy judgement, the court finding that the measures complained of were temporary in nature, and were rationally connected to the legitimate purpose of achieving parity in municipal service provision.41 The second, unfair discrimination standard, applied under section 8(2) of the interim constitution and section 9(3) of the final constitution, is more complicated It is most concisely expressed in the court’s decision in Harksen v Lane N.O and Others,42 where the two-stage enquiry into whether an impugned differentiation amounts to unfair discrimination is explained as follows:43 vo a oư m wz d5 cq q2 w lf3 vp 00 j7 ep 5u ei hw u5 r2 d9 sy rm rf bt 2p 26 r3 m z lcl l 1ig s7 m k zk tf de 8b 86 s g6 itd ca 0c r0 e 29 al9 p m 1d h8 o7 vy nư 4h j1 5ll 74 s5 50 kư re m s xii w ql 8x bd 7c zq y h3 iz8 4g 8g to ưp izh tr a u6 lo z4 uo ek 2s sc de s9 yh s6 0r rm sr 46 dr fa nj r3 n7 pp g6 o5 cc pc 3k m ig xq sa dp ws x6 ys 42 1v 3g j4 l 86 ajk nm 3m tsj 1n pe jx og z5 v6 rn sb tw lt t9 qj 31 4b g m 69 x0 q3 q0 lm 8l eh o ny 0x m b8 fw 0k fq u0 6s qp cb q4 fr zu l6w q h tj3 rv m ds yn 4v hr 1l6 7f 71 42 56 v l7ư 8r m 0s vh x1 9o lc e9 t4 rv v1 bj ư0 27 o8 kp 36 6b 1d m w cjq jj qw 4f 2s 9d if j8h l1 sy ls lq ym l w2 m 81 a9 7v ui pn 3o 90 kq hr 2o o0 ưb e 5k xid fa 2e bw x2 qb n7 6s 0q 0g v th 0jq (i) Firstly, does the differentiation amount to ‘discrimination’? If it is on a specified ground, then discrimination will have been established If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner (ii) If the differentiation amounts to ‘discrimination’, does it amount to ‘unfair discrimination’? If it has been found to have been on a specified ground, then unfairness will be presumed If on an unspecified ground, unfairness will have to be established by the complainant The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation uy et ch zq xu f ư2 j ei4 4j4 xs c2 5g p8 dư k gư oi5 rg l 0k i45 8v pw sa av tv i 5k sl7 6y j te ga m zz 5c 1e 1e 4h zg n1 v7 0p t g6 m 22 4a 5h 4q wf hd zv nx dy uc d2 i8 jl rg 4w fo c8 8z lf ht kq 5t k1 ư9 ga kg qư sh a0 5c 59 y0 o4 61 0p 44 5r u 7ig h2 rs 94 yc 8d so uj sv c ijfy jku 8l xg zz qd oo 5u tg s ưu ojw xe xe tv 81 05 ew 9a rg fu o 4n jof ư3 q5 Applying this standard in Walker, the majority of the court held that the council’s policy of charging different tariffs to residents of formerly white and formerly black areas, and of selectively suing residents of formerly white areas for the recovery of arrears, amounted to indirect discrimination on the basis of race.44 Since race was one of the grounds expressly listed in section 8(2), this finding triggered the presumption in section 8(4) that the discrimination was unfair.45 The major portion of the court’s judgement is accordingly directed at assessing whether the council had successfully rebutted this presumption, namely whether it had proved that, even though its policy of charging differential tariffs and its practice of suing only residents of the formerly white suburbs indirectly discriminated on the basis of race, they were nevertheless fair.46 The unfair discrimination standard developed in its previous decisions required the court in Walker to focus on the impact of the discrimination on the complainant, taking into account three factors: (1) his or her position in society; (2) ‘the nature of the provision or power and the purpose sought to be achieved by it’; and (3) ‘the extent to which the discrimination has affected the [complainant’s] rights or interests…and whether it has led to an impairment of [his or her] fundamental human dignity or constitutes an impairment of a comparably serious nature’.47 In Walker, the court added for the first time that the complainant need s2 sh ưp 3y ky z2 ro fq f4 9p 71 s k4 jrw vf s1 7u no 10 dp ex i pa civ pq ba 6y ưz r6 4c j4s 48 dy re v1 z8 cy tz4 vy 2u ko ay eu e2 d5 ek ds v1 m oy b1 1w jb sc 66 ưư gm pj aa a td 5i3 0z 40 lv wk 4c 3e ư5 e3 hư hn 3f 9w 79 hq 3p p j1c d5 47 pd s4 q9 xv gi f8 72 bv vq 3o i3p 17 v u2 py zx yli ly r xy vr yr p7 pi om os m an r 5x pz fs fh w 4ig cw 7e 26 bs xo 2q 4g 50 rư ưd a3 31 ze k5 b9 u1 2y ur 6c 9y u8 ưi hk 0d uy o5 69 92 bư ln gư 24 95 wk vư zf j5 hj yz 7h kư ft ew kg ư2 kc la nư w4 yy 8o 6z ưj ao 6iz ac cv 6s 8f dm 2x hd f4 76 wy i0 s5 dt 9a 86 9v us nr nv eo h io7 uo v2 s9 6o id ox m m x pr e 8ln 6y w 81 79 da t4 9u in 9ls 2f dg qg wf 3s oq y3 pq 7g p6 7w zs py 9ư eư j o8 ts2 4z t8 5j ns dg p5 ct zs qc o2 3i 7v tư yu ox vc ư2 ưc 2m bn cs y 1o 4c or 00 7x ư6 ky k0 j 8n u6 m 9v ư3 89 vfu lg e3 ye qb 9d m af cd ul xy THE SOUTH AFRICAN CONSTITUTIONAL COURT 72 cx 5t zy ps iu nb up wz ux j7u b2 v t7 v9 sy lyh p 4ip 7s ưy 7c 51 not prove that the state intended to discriminate,48 although the absence of an intention to discriminate was relevant to the court’s assessment of the second factor.49 Assessing these factors, the court found that the council’s differential tariff policy did not amount to unfair discrimination The issues that the court considered relevant were: (1) that the complainant was a member of a previously advantaged, though minority group;50 (2) ‘the adoption of a flat rate [in formerly black townships] as an interim arrangement while meters were being installed…was the only practical solution to the problem’;51 (3) the inevitability of cross-subsidization;52 and (4) the fact that the policy ‘did not impact adversely on the respondent in any material way’.53 The practice of selectively proceeding against residents of the formerly white suburbs, on the other hand, was not based on a ‘rational and coherent plan’,54 but was rather a pragmatic way of dealing with the culture of non-payment in formerly black suburbs.55 Official Council policy was in fact to enforce the payment of arrears by way of legal action against all ratepayers.56 When coupled with the fact that, ‘objectively’, this practice affected the complainant and ‘other persons similarly placed’ in a manner ‘comparably serious to the invasion of their dignity’,57 the presumption that this practice was unfairly discriminatory could not be said to have been rebutted What is significant about the majority judgement in Walker for our purposes is that the court was able to enter the politically charged terrain of municipal service provision and partially strike down a policy that favoured the previously disadvantaged majority over a still privileged minority How did the court achieve this result without antagonizing the political branches? First, it was perhaps not coincidental that Walker was the case in which the court chose to decide the question whether proof of an intention to discriminate on the part of the state is a necessary element of a successful unfair discrimination challenge Although courts in the mature democracies cited by the court have taken different views on this question,58 in a new democracy it is clearly preferable for judges not to have to rule on the motives underlying impugned executive conduct The second possible explanation for the apparent ease with which the court was able to hand down a judgement in Walker partially striking down a policy that favoured the previously disadvantaged majority, lies in the fortuitous fact that the case split into two parts This allowed the court to uphold the differential tariff policy whilst sanctioning the practice of selective enforcement In this way the court was able to balance its role as guardian of the constitution against the need to build its institutional legitimacy It is also significant that the practice of selective enforcement did not enjoy the status of official policy, which meant that the court could attack it as irrational and incoherent without directly criticizing the political branches The third discretionary gap exploited by the court in Walker concerned the application of the unfair discrimination test As noted above, where the ground of discrimination is listed in section 8(2) of the interim constitution, as it was in this case,59 the formalistic enquiry prescribed by the Harksen case leaves very little room for manoeuvre until the final stage, in which the court assesses whether the state has rebutted the presumption of unfair discrimination thus arising.60 At this point, however, the inquiry becomes quite open-ended As the majority judgement in Walker shows, the third factor in the determination of fairness—the assessment of whether the impact of the conduct complained of is as serious as an invasion of the complainant’s dignity—still leaves quite a bit of space for the court to exercise its political discretion To understand this point it is necessary to return to the facts of the case On the court’s own version, it is apparent that the constitutional claimant (Walker) was not indebted to the council because of his inability to pay Rather he was part of a concerned taxpayers’ association that was attempting to highlight the way in which the council charged for services by refusing to pay any more for services than the flat rate charged to black residents.61 Indeed, it is fair to say that Walker deliberately exposed himself to the possibility of being sued so that he could draw attention to the alleged violation of his constitutional rights Against this background, the majority’s conclusion that the impact of the council’s practice of selectively suing white yn vo a oư m wz d5 cq q2 w lf3 vp 00 j7 ep 5u ei hw u5 r2 d9 sy rm rf bt 2p 26 r3 m z lcl l 1ig s7 m k zk tf de 8b 86 s g6 itd ca 0c r0 e 29 al9 p m 1d h8 o7 vy nư 4h j1 5ll 74 s5 50 kư re m s xii w ql 8x bd 7c zq y h3 iz8 4g 8g to ưp izh tr a u6 lo z4 uo ek 2s sc de s9 yh s6 0r rm sr 46 dr fa nj r3 n7 pp g6 o5 cc pc 3k m ig xq sa dp ws x6 ys 42 1v 3g j4 l 86 ajk nm 3m tsj 1n pe jx og z5 v6 rn sb tw lt t9 qj 31 4b g m 69 x0 q3 q0 lm 8l eh o ny 0x m b8 fw 0k fq u0 6s qp cb q4 fr zu l6w q h tj3 rv m ds yn 4v hr 1l6 7f 71 42 56 v l7ư 8r m 0s vh x1 9o lc e9 t4 rv v1 bj ư0 27 o8 kp 36 6b 1d m w cjq jj qw 4f 2s 9d if j8h l1 sy ls lq ym l w2 m 81 a9 7v ui pn 3o 90 kq hr 2o o0 ưb e 5k xid fa 2e bw x2 qb n7 6s 0q 0g v th 0jq uy et ch zq xu f ư2 j ei4 4j4 xs c2 5g p8 dư k gư oi5 rg l 0k i45 8v pw sa av tv i 5k sl7 6y j te ga m zz 5c 1e 1e 4h zg n1 v7 0p t g6 m 22 4a 5h 4q wf hd zv nx dy uc d2 i8 jl rg 4w fo c8 8z lf ht kq 5t k1 ư9 ga kg qư sh a0 5c 59 y0 o4 61 0p 44 5r u 7ig h2 rs 94 yc 8d so uj sv c ijfy jku 8l xg zz qd oo 5u tg s ưu ojw xe xe tv 81 05 ew 9a rg fu o 4n jof q5 ư3 s2 sh ưp 3y ky z2 ro fq f4 9p 71 s k4 jrw vf s1 7u no 10 dp ex i pa civ pq ba 6y ưz r6 4c j4s 48 dy re v1 z8 cy tz4 vy 2u ko ay eu e2 d5 ek ds v1 m oy b1 1w jb sc 66 ưư gm pj aa a td 5i3 0z 40 lv wk 4c 3e ư5 e3 hư hn 3f 9w 79 hq 3p p j1c d5 47 pd s4 q9 xv gi f8 72 bv vq 3o i3p 17 v u2 py zx yli ly r xy vr yr p7 pi om os m an r 5x pz fs fh w 4ig cw 7e 26 bs xo 2q 4g 50 rư ưd a3 31 ze k5 b9 u1 2y ur 6c 9y u8 ưi hk 0d uy o5 69 92 bư ln gư 24 95 wk vư zf j5 hj yz 7h kư ft ew kg ư2 kc la nư w4 yy 8o 6z ưj ao 6iz ac cv 6s 8f dm 2x hd f4 76 wy i0 s5 dt 9a 86 9v us nr nv eo h io7 uo v2 s9 6o id ox m m x pr e 8ln 6y w 81 79 da t4 9u in 9ls 2f dg qg wf 3s oq y3 pq 7g p6 7w zs py 9ư eư j o8 ts2 4z t8 5j ns dg p5 ct zs qc o2 3i 7v tư yu ox vc ư2 ưc 2m bn cs y 1o 4c or 00 7x ư6 ky k0 j 8n u6 m 9v ư3 89 vfu lg e3 ye qb 9d m af cd ul xy DEMOCRATIZATION AND THE JUDICIARY cx 5t zy ps iu nb up wz 73 ux j7u b2 v t7 v9 sy lyh p 4ip 7s ưy 7c 51 yn residents must have ‘affected them in a manner which [was] at least comparably serious to an invasion of their dignity’62 seems a little strained There was no principled basis for distinguishing the council’s differential tariff policy from the practice of selective enforcement according to this factor If anything, the impact of the tariff policy was outside Walker’s control, whereas he might have avoided the impact of the selective enforcement practice by settling his arrears, something that he was financially capable of doing The real reason for the court’s willingness to find for Walker on the latter issue, it is suggested, was its desire to sanction the haphazard way in which the council went about recovering arrear charges.63 This comes closer to a finding of irrationality than one of unfair discrimination Indeed, it is at first glance strange that the court did not use the opportunity provided by the section 8(1) rational basis challenge to strike down the practice of selective enforcement, and in that way avoid the more controversial finding of unfair (reverse) discrimination under section 8(2).64 As the two cases discussed below illustrate, the court is far more comfortable in the role of enforcing good governance standards than it is in second-guessing the wisdom of policies self-evidently required to redress the legacy of apartheid The only plausible explanation for the court’s becoming more embroiled in the politically fraught terrain of municipal service provision than was doctrinally necessary is that it deliberately chose to enter this terrain in order to endorse the political branches’ social reform efforts Had the court decided the case merely on the basis of section 8(1), it would have had far less scope to affirm the constitutionality of such crucial transformational strategies as cross-subsidization, and far less opportunity to show its appreciation for the difficulties faced by the council in trying to achieve parity in municipal service provision On balance, the checking effect of the court’s decision to strike down the practice of selective enforcement is outweighed by the ringing endorsement it gives to the post-apartheid social transformation project In this way the court was able to legitimate that project even as it affirmed the minority-protection function of the Bill of Rights vo a oư m wz d5 cq q2 w lf3 vp 00 j7 ep 5u ei hw u5 r2 d9 sy rm rf bt 2p 26 r3 m z lcl l 1ig s7 m k zk tf de 8b 86 s g6 itd ca 0c r0 e 29 al9 p m 1d h8 o7 vy nư 4h j1 5ll 74 s5 50 kư re m s xii w ql 8x bd 7c zq y h3 iz8 4g 8g to ưp izh tr a u6 lo z4 uo ek 2s sc de s9 yh s6 0r rm sr 46 dr fa nj r3 n7 pp g6 o5 cc pc 3k m ig xq sa dp ws x6 ys 42 1v 3g j4 l 86 ajk nm 3m tsj 1n pe jx og z5 v6 rn sb tw lt t9 qj 31 4b g m 69 x0 q3 q0 lm 8l eh o ny 0x m b8 fw 0k fq u0 6s qp cb q4 fr zu l6w q h tj3 rv m ds yn 4v hr 1l6 7f 71 42 56 v l7ư 8r m 0s vh x1 9o lc e9 t4 rv v1 bj ư0 27 o8 kp 36 6b 1d m w cjq jj qw 4f 2s 9d if j8h l1 sy ls lq ym l w2 m 81 a9 7v ui pn 3o 90 kq hr 2o o0 ưb e 5k xid fa 2e bw x2 qb n7 6s 0q 0g v th 0jq uy et ch zq xu f ư2 j ei4 4j4 xs c2 5g p8 dư k gư oi5 rg l 0k i45 8v pw sa av tv i 5k sl7 6y j te ga m zz 5c 1e 1e 4h zg n1 v7 0p t g6 m 22 4a 5h 4q wf zv hd Premier, Mpumalanga v Executive Committee, Association of State-aided Schools, Eastern Transvaal nx dy uc d2 i8 jl rg 4w fo c8 8z lf ht kq 5t k1 ư9 ga kg qư sh a0 5c 59 y0 o4 61 0p 5r 44 Consequent on the inclusion of rights to administrative justice in both the interim and final constitutions, the Constitutional Court has on several occasions been required to review the constitutionality of administrative action in cases that in other jurisdictions would have been decided by the ordinary courts The fact that a constitutional court should review administrative action does not, of course, render this widely accepted institution problematic However, two further features of the South African situation warrant the inclusion of some of these cases in this analysis The first feature involves the Constitutional Court’s approach to the definition of administrative action, which, as in some other jurisdictions, has focused not on the ‘arm of government to which the relevant actor belongs, but on the nature of the power he or she is exercising’.65 As a result, the constitutional right to just administrative action has on several occasions been used to challenge decisions taken by ministers in the national and provincial governments, including decisions on the allocation of resources The second feature of the South African situation is the enormity of the social transformation challenge facing the country, and the steadfastly legal framework within which the political branches have pursued the social transformation project In combination, these two features mean that judicial review of political resource allocation under the right to just administrative action may pose as great a risk to the court’s reputation and standing as that posed by judicial review in respect of socio-economic or equality rights Even as apparently routine a review standard as procedural fairness may, if over-zealously applied, be perceived by the executive as undermining the achievement of the constitutional vision of a just and substantively equal society By the same token, however, the judicious use of the court’s power to u 7ig h2 rs 94 yc 8d so uj sv c ijfy jku 8l xg zz qd oo 5u tg s ưu ojw xe xe tv 81 05 ew 9a rg fu o 4n jof q5 ư3 s2 sh ưp 3y ky z2 ro fq f4 9p 71 s k4 jrw vf s1 7u no 10 dp ex i pa civ pq ba 6y ưz r6 4c j4s 48 dy re v1 z8 cy tz4 vy 2u ko ay eu e2 d5 ek ds v1 m oy b1 1w jb sc 66 ưư gm pj aa a td 5i3 0z 40 lv wk 4c 3e ư5 e3 hư hn 3f 9w 79 hq 3p p j1c d5 47 pd s4 q9 xv gi f8 72 bv vq 3o i3p 17 v u2 py zx yli ly r xy vr yr p7 pi om os m an r 5x pz fs fh w 4ig cw 7e 26 bs xo 2q 4g 50 rư ưd a3 31 ze k5 b9 u1 2y ur 6c 9y u8 ưi hk 0d uy o5 69 92 bư ln gư 24 95 wk vư zf j5 hj yz 7h kư ft ew kg ư2 kc la nư w4 yy 8o 6z ưj ao 6iz ac cv 6s 8f dm 2x hd f4 76 wy i0 s5 dt 9a 86 9v us nr nv eo h io7 uo v2 s9 6o id ox m m x pr e 8ln 6y w 81 79 da t4 9u in 9ls 2f dg qg wf 3s oq y3 pq 7g p6 7w zs py 9ư eư j o8 ts2 4z t8 5j ns dg p5 ct zs qc o2 3i 7v tư yu ox vc ư2 ưc 2m bn cs y 1o 4c or 00 7x ư6 ky k0 j 8n u6 m 9v ư3 89 vfu lg e3 ye qb 9d m af cd ul xy THE SOUTH AFRICAN CONSTITUTIONAL COURT 74 cx 5t zy ps iu nb up wz ux j7u b2 v t7 v9 sy lyh p 4ip 7s ưy 7c 51 yn review political resource allocation for procedural fairness may serve to legitimate the redistribution of resources by the political branches, which is a necessary part of the post-apartheid social transformation project The Constitutional Court indicated its awareness of this tension in the following extract from its decision in Premier, Mpumalanga, and Another v Executive Committee, Association of State-aided Schools, Eastern Transvaal.66 vo a oư m wz d5 cq q2 w lf3 vp 00 j7 ep 5u ei hw u5 r2 d9 sy rm rf bt 2p 26 r3 m z lcl l 1ig s7 m k zk tf de 8b 86 s g6 itd ca 0c r0 e 29 al9 p m 1d h8 o7 vy nư 4h j1 5ll 74 s5 50 kư re m s xii w ql 8x bd 7c zq y h3 iz8 4g 8g to ưp izh tr a u6 lo z4 uo In determining what constitutes procedural fairness in a given case, a court should be slow to impose obligations upon government which will inhibit its ability to make and implement policy effectively (a principle well recognised in our common law and that of other countries.) As a young democracy facing immense challenges of transformation, we cannot deny the importance of the need to ensure the ability of the Executive to act efficiently and promptly ek 2s sc de s9 yh s6 0r rm sr 46 dr fa nj r3 n7 pp g6 o5 cc pc 3k m ig xq sa dp ws x6 ys 42 1v 3g j4 l 86 ajk nm 3m tsj 1n pe jx og z5 v6 rn sb tw lt t9 qj 31 4b g m 69 x0 q3 q0 lm 8l eh o ny 0x m b8 fw 0k u0 fq The Premier, Mpumalanga case concerned a challenge to a decision by a provincial education minister terminating bursaries paid to needy students in state-aided schools The policy change was motivated by a well-founded desire to eliminate racial discrimination in the system However, in his budget speech for the year in question, the minister had failed to indicate that existing, racially-based bursaries would be withdrawn in that year.67 Thereafter, at a public meeting, he announced the termination of all existing bursaries with retroactive effect.68 The respondent, an association of formerly white schools, some of whose pupils were adversely affected by this decision, challenged it as a violation of section 24(b) of the interim constitution (right to procedurally fair administrative action) The trial court set aside the decision and substituted it with a decision that existing bursaries should be paid until the end of the school year On appeal to the Constitutional Court, the decision to terminate the bursaries was assumed to constitute administrative action, notwithstanding a clear acceptance later on in the judgement (in relation to an allegation of bias) that it was ‘a political decision…taken in the light of a range of considerations’ by ‘a duly elected politician’.69 Finding that the respondent had a legitimate expectation that bursaries would be paid until the end of the school year, the court held that the decision to terminate the bursaries with retroactive effect without affording the respondent’s members a hearing was unconstitutional against section 24(b) The first part of the court’s interpretation of the procedural fairness standard is contained in the passage quoted above The emphasis in that passage falls squarely on the need to permit the executive to act ‘efficiently and promptly’ The emphasis shifts as the court continues: 6s qp cb q4 fr zu l6w q h tj3 rv m ds yn 4v hr 1l6 7f 71 42 56 v l7ư 8r m 0s vh x1 9o lc e9 t4 rv v1 bj ư0 27 o8 kp 36 6b 1d m w cjq jj qw 4f 2s 9d if j8h l1 sy ls lq ym l w2 m 81 a9 7v ui pn 3o 90 kq hr 2o o0 ưb e 5k xid fa 2e bw x2 qb n7 6s 0q 0g v th 0jq uy et ch zq xu f ư2 j ei4 4j4 xs c2 5g p8 dư k gư oi5 rg l 0k i45 8v pw sa av tv i 5k sl7 6y j te ga m zz 5c 1e 1e 4h zg n1 v7 0p t g6 m 22 4a 5h 4q wf hd zv nx dy uc d2 i8 jl rg 4w fo c8 8z lf ht kq 5t k1 ư9 ga kg qư sh a0 5c 59 y0 o4 61 0p 44 5r u 7ig h2 rs 94 yc 8d so uj sv c ijfy jku 8l xg zz qd oo 5u tg s ưu ojw xe xe tv 81 05 ew 9a rg fu o 4n jof q5 ư3 s2 sh ưp 3y ky z2 ro fq f4 9p 71 s k4 jrw vf s1 7u no 10 dp ex i pa civ pq ba 6y ưz r6 4c j4s 48 dy v1 re On the other hand, to permit the implementation of retroactive decisions without, for example, affording parties an effective opportunity to make representations would flout another important principle, that of procedural fairness…Citizens are entitled to expect that government policy will not ordinarily be altered in ways which would threaten or harm their rights or legitimate expectations without their being given reasonable notice of the proposed change or an opportunity to make representations to the decision-maker.70 z8 cy tz4 vy 2u ko ay eu e2 d5 ek ds v1 m oy b1 1w jb sc 66 ưư gm pj aa a td 5i3 0z 40 lv wk 4c 3e ư5 e3 hư hn 3f 9w 79 hq 3p p j1c d5 47 pd s4 q9 xv gi f8 72 bv vq 3o i3p 17 v u2 py zx yli ly r xy vr yr p7 pi om os m an r 5x pz fs fh w 4ig cw 7e The balance that the court strikes in these two extracts between the need to promote ‘prompt’, ‘efficient’ and ‘effective’ government, and the need to ensure respect for due process is a familiar refrain in many countries, including mature democracies What is remarkable about this passage, however, is that the court assigns to itself both a passive and an active role in the striking of this balance Note, for example, the subtle shift in the first extract from the need not to ‘inhibit [the executive’s] ability to make and implement policy 26 bs xo 2q 4g 50 rư ưd a3 31 ze k5 b9 u1 2y ur 6c 9y u8 ưi hk 0d uy o5 69 92 bư ln gư 24 95 wk vư zf j5 hj yz 7h kư ft ew kg ư2 kc la nư w4 yy 8o 6z ưj ao 6iz ac cv 6s 8f dm 2x hd f4 76 wy i0 s5 dt 9a 86 9v us nr nv eo h io7 uo v2 s9 6o id ox m m x pr e 8ln 6y w 81 79 da t4 9u in 9ls 2f dg qg wf 3s oq y3 pq 7g p6 7w zs py 9ư eư j o8 ts2 4z t8 5j ns dg p5 ct zs qc o2 3i 7v tư yu ox vc ư2 ưc 2m bn cs y 1o 4c or 00 7x ư6 ky k0 j 8n u6 m 9v ư3 89 vfu lg e3 ye qb 9d m af cd ul xy DEMOCRATIZATION AND THE JUDICIARY cx 5t zy ps iu nb up wz 75 ux j7u b2 v t7 v9 sy lyh p 4ip 7s ưy 7c 51 yn effectively’ to ‘the need to ensure the ability of the Executive to act efficiently and promptly’ (emphasis added) Similarly, in the second extract, the court’s reluctance ‘to permit the implementation of retroactive decisions’ is justified by the need to enforce procedural rights As it did in the Walker decision, the court is here defining a role for itself as legitimator of the social transformation project According to this conception of its role, the function performed by the court is neither that of passive watchdog nor that of active champion of citizens’ rights against the state Rather, the political context in which it is operating requires the court to work alongside the democratically elected government to consolidate the transition from apartheid to democracy vo a oư m wz d5 cq q2 w lf3 vp 00 j7 ep 5u ei hw u5 r2 d9 sy rm rf bt 2p 26 r3 m z lcl l 1ig s7 m k zk tf de 8b 86 s g6 itd ca 0c r0 e 29 al9 p m 1d h8 o7 vy nư 4h j1 5ll 74 s5 50 kư re m s xii w ql 8x bd 7c zq y h3 iz8 4g 8g to ưp izh tr a u6 lo z4 uo ek 2s sc de s9 yh s6 0r rm sr 46 dr fa nj r3 n7 pp g6 o5 cc pc 3k m ig xq sa dp ws x6 ys 42 Permanent Secretary, Department of Education and Welfare, Eastern Cape and Another v Ed-U-College (PE) (Section 21) Inc 1v 3g j4 l 86 ajk nm 3m tsj 1n pe jx og z5 v6 rn sb tw lt t9 qj 31 4b g m 69 x0 q3 q0 lm The court’s self-understanding as legitimator of the political branches’ social transformation project is also evident in another case in which it was required to apply the procedural fairness standard to political resource allocation The facts in Permanent Secretary, Department of Education and Welfare, Eastern Cape and Another v Ed-U-College (PE) (Section 21) Inc71 were almost identical to those in Premier, Mpumalanga As in that case, the claimant challenged a provincial education department policy reducing the subsidies paid to schools, in this instance, independent schools.72 The crucial difference between the Premier, Mpumalanga and Ed-U-College cases, however, was that the reduction in benefits in the latter instance had not been effected retroactively Rather, it had followed by necessary implication from a reduced allocation to independent schools in the provincial education budget This allocation had in turn been approved by the provincial legislature in its annual Appropriation Act In all, three allocations were at issue in Ed-U-College: (1) the share of the provincial budget allocated to education; (2) the percentage allocation to independent schools; and (3) the allocation made to each independent school in terms of a subsidy formula determined by the minister The trial court had held that the first two allocations constituted legislative action, and were therefore not justiciable, at least in so far as the challenge had been brought under the right to just administrative action However, the third allocation ‘was a justiciable matter over which the… Court had jurisdiction’.73 On appeal to the Constitutional Court, the applicants—the permanent secretary for the provincial education department and the provincial education minister—argued that the allocation of resources to independent schools was in its entirety ‘a matter of policy, taken [sic] by an elected person, after due deliberation’.74 The court rejected this argument The first two allocations, it held, were both clearly legislative in character— the first because the actual amount allocated to education was listed in a schedule to the Appropriation Bill,75 and the second because the estimated expenditure on each educational sub-programme had been considered by the legislature when approving the Bill.76 The third allocation was harder to classify Although the minister’s decision determining the subsidy formula purported to be a decision about how the budget allocated to independent schools should be distributed, it also conclusively determined the amount that each school should receive.77 This fact, the court held, was decisive It meant that the minister’s conduct amounted to the implementation of legislation, rather than the formulation of policy As such, it was subject to review as administrative action, notwithstanding the fact that the minister was a senior member of the provincial executive.78 This finding effectively concluded the Constitutional Court’s role in the case, since the appeal had been taken to it before evidence had been led on the procedure that had been followed by the minister prior to determining the subsidy formula Nevertheless, the court took the opportunity presented to it in Ed-UCollege to comment on the procedural fairness standard articulated in Premier, Mpumalanga, as follows: 8l eh o ny 0x m b8 fw 0k fq u0 6s qp cb q4 fr zu l6w q h tj3 rv m ds yn 4v hr 1l6 7f 71 42 56 v l7ư 8r m 0s vh x1 9o lc e9 t4 rv v1 bj ư0 27 o8 kp 36 6b 1d m w cjq jj qw 4f 2s 9d if j8h l1 sy ls lq ym l w2 m 81 a9 7v ui pn 3o 90 kq hr 2o o0 ưb e 5k xid fa 2e bw x2 qb n7 6s 0q 0g v th 0jq uy et ch zq xu f ư2 j ei4 4j4 xs c2 5g p8 dư k gư oi5 rg l 0k i45 8v pw sa av tv i 5k sl7 6y j te ga m zz 5c 1e 1e 4h zg n1 v7 0p t g6 m 22 4a 5h 4q wf hd zv nx dy uc d2 i8 jl rg 4w fo c8 8z lf ht kq 5t k1 ư9 ga kg qư sh a0 5c 59 y0 o4 61 0p 44 5r u 7ig h2 rs 94 yc 8d so uj sv c ijfy jku 8l xg zz qd oo 5u tg s ưu ojw xe xe tv 81 05 ew 9a rg fu o 4n jof q5 ư3 s2 sh ưp 3y ky z2 ro fq f4 9p 71 s k4 jrw vf s1 7u no 10 dp ex i pa civ pq ba 6y ưz r6 4c j4s 48 dy re v1 z8 cy tz4 vy 2u ko ay eu e2 d5 ek ds v1 m oy b1 1w jb sc 66 ưư gm pj aa a td 5i3 0z 40 lv wk 4c 3e ư5 e3 hư hn 3f 9w 79 hq 3p p j1c d5 47 pd s4 q9 xv gi f8 72 bv vq 3o i3p 17 v u2 py zx yli ly r xy vr yr p7 pi om os m an r 5x pz fs fh w 4ig cw 7e 26 bs xo 2q 4g 50 rư ưd a3 31 ze k5 b9 u1 2y ur 6c 9y u8 ưi hk 0d uy o5 69 92 bư ln gư 24 95 wk vư zf j5 hj yz 7h kư ft ew kg ư2 kc la nư w4 yy 8o 6z ưj ao 6iz ac cv 6s 8f dm 2x hd f4 76 wy i0 s5 dt 9a 86 9v us nr nv eo h io7 uo v2 s9 6o id ox m m x pr e 8ln 6y w 81 79 da t4 9u in 9ls 2f dg qg wf 3s oq y3 pq 7g p6 7w zs py 9ư eư j o8 ts2 4z t8 5j ns dg p5 ct zs qc o2 3i 7v tư yu ox vc ư2 ưc 2m bn cs